This article has been written by Sumit Kulkarni and Gautam Dhamija.
Table of Contents
Introduction
The Indian Judicial System has long been marred by prolonged litigations, entangled procedural delays and a severe backlog crisis. According to the National Judicial Data Grid (“NJDG”), a Government database, the average pendency of a criminal case in the Indian Court is 11 years while that of a civil case is 7 years. Albeit, ‘the right to a speedy trial’ being a fundamental right under Article 21 of the Indian Constitution and numerous statutes providing time limits for disposal of cases, the same still remains a distant dream.
Furthermore, the current pandemic has aggravated the already faltering judicial system, manifesting the dire need for the legislature to step in and overhaul the system.
However, till then, there are some guidelines laid down by the Supreme Court and the High Courts through judgements that can be relied upon to expedite a trial. This article lists five such judgements and seeks to analyse the guidelines laid in them.
Basavaraj R. Patil v. State of Karnataka
313 of Criminal Procedure Code, 1973: Exemption from personal attendance of the accused for examination in warrant cases.
The Rationale Behind the Requirement of Mandatory Personal Attendance of the Accused
Section 313 of the Criminal Procedure Code, 1973 (“CrPC”), deals with the power of the court to examine the accused. Under this provision, the accused is given an opportunity to personally explain all the circumstances put in evidence against him, essentially ensuring that the accused is aware and informed of the prosecution’s case against him, and is consequently able to prepare his defence and effectively plead his case.
This enables the trial to meet the requirement of the cardinal principle of natural justice—audi alteram partem or the right to be heard. Furthermore, the inherent language of S. 313 (1) (b) makes the provision mandatory in nature. Hence, bypassing the examination of the accused will go against the principles of natural justice and might prove fatal to the case of the prosecution, as it is the settled principle of law that a piece of evidence not put to the accused cannot be used against him.
Warrant Cases and Summons Cases
There are two types of cases:
- Summons Case: A case where the alleged offence is punishable with imprisonment not exceeding two years.
- Warrant Case: A case where the alleged offence is punishable with imprisonment exceeding two years or life imprisonment or death.
In a summons case, the examination of an accused is not mandatory if the Court has already dispensed off with his personal attendance. However, there is no such statutory exemption regarding the personal attendance of an accused in warrant cases, resulting in many trials being stuck at initial stages where the accused is unable to be personally present in the court due to various reasons.
Guidelines laid down in the case of Basavaraj R. Patil v. State of Karnataka
In the above case, the Supreme Court laid down guidelines for the exemption of personal attendance of an accused for examination by the court under S. 313 of CrPC, where the accused encounters genuine hardship to be present in the court. Further, the Court observed that said provision is intended to benefit the accused and hence as a general rule should be mandatorily complied with.
However, if the accused proves to the satisfaction of the court that the said provision would work to his great prejudice and disadvantage, then the court may take a pragmatic and humanistic approach and grant exemption from personal attendance. Thus, the personal attendance of an accused for examination, may, at the discretion of the court, be exempted in instances where the accused is physically incapacitated, lives abroad, cannot make the journey to the court without bearing huge expenditure, or in such other cases where the accused convinces the court that the same would cause him great hardship.
Even so, the exemption does not dispense off the responsibility of the court to examine the accused. The Supreme Court laid down the following procedural guidelines to be followed for the examination of the accused under S. 313 CrPC for such instances.
The relevant portion of the judgement is extracted below:
(Para 24) If the accused (who is already exempted from personally appearing in the Court) makes an application to the court praying that he may be allowed to answer the questions without making his physical presence in court on account of justifying exigency the court can pass appropriate orders thereon, provided such application is accompanied by an affidavit sworn to by the accused himself containing the following matters:
(a) A narration of facts to satisfy the court of his real difficulties to be physically present in court for giving such answers,
(b) An assurance that no prejudice would be caused to him, in any manner, by dispensing with his personal presence during such questioning,
(c) An undertaking that he would not raise any grievance on that score at any stage of the case.
(Para 25) If the court is satisfied of the genuineness of the statements made by the accused in the said application and affidavit it is open to the court to supply the questionnaire to his advocate (containing the questions which the court might put to him under Section 313 of the Code) and fix the time within which the same has to be returned duly answered by the accused together with a properly authenticated affidavit that those answers were given by the accused himself. He should affix his signature on all the sheets of the answered questionnaire. However, if he does not wish to give any answer to any of the questions, he is free to indicate that fact at the appropriate place in the questionnaire [as a matter of precaution the Court may keep photocopy or carbon copy of the questionnaire before it is supplied to the accused for answers]. If the accused fails to return the questionnaire duly answered as aforesaid within the time or extended time granted by the court, he shall forfeit his right to seek personal exemption from court during such questioning.
Analysis of the guidelines
In pursuant to the above-mentioned guidelines, if an accused has been granted exemption from personal attendance, the court will require the accused to answer a questionnaire containing all the questions that the court wants to put to him for the purposes of S. 313 CrPC. The questionnaire will be supplied by the court to the accused through his advocate and the same shall be returned to the court with proper answers accompanied with a duly signed affidavit by the accused stating that all the answers were given by him.
Damodar S. Prabhu v. Sayed Babalal H.
Compounding an offence of cheque bounce under S. 138 of the Negotiable Instruments Act, 1881.
The menace of cheque bounce cases in India
The criminal courts in India are choked with cheque bounce cases under Section 138 of the Negotiable Instruments Act, 1881 (“NI Act”). As per the 213th Law Commission Report, more than 38 lakh cheque bounce cases are pending in Indian courts. According to the DAKSH Database, which tracks the number of pending cases in Indian courts, on average, it takes approximately 6 years to get the final verdict in a cheque bounce case.
Compounding of offence of dishonour of a cheque
The main objective of the complainant in a cheque bounce case is not to punish the defendant but to recover his money. The quickest way to do the same is for parties to amicably reach a settlement and compound the offence. Section 147 of the NI Act provides for compounding of an offence in relation to dishonour of cheques, however, it does not specify the exact stage at which the same can be used in a trial.
Thus, many a time, the defendants, taking undue advantage of the grey area and the slow-moving judicial process, seek to enter into a settlement with the prosecution for compounding the offence only at the later stages of a trial when it becomes quite evident to them that the trial proceedings may not go their way. Inevitably, this causes wastage of judicial time and resources while also entangling the complainant into a futile, long-drawn judicial proceeding to recover his money.
Guidelines laid down in the case of Damodar S. Prabhu v. Sayed Babalal H., 2010
In the above case, the Supreme Court laid down certain guidelines to tackle this menace of deliberate late compounding of offence in a cheque bounce case while encouraging early compounding of the same.
The relevant portion of the judgement is extracted below:
“(i) In the circumstances, it is proposed as follows:
- That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused.
- If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit.
- Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.
- Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount.”
Analysis of the guidelines
Thus, by looking closely at the above guidelines, we can conclude that the Supreme Court has tried to force the accused to enter into an early settlement by imposing gradually increasing costs at each step of trial for compounding of the offence after the second hearing.
Furthermore, the complainant can also request the court to include the above-mentioned guidelines in the Writ of Summons and compel the defendant to make an application for compounding of the offence in the first or second hearing itself, thereby saving judicial time and resources as well as years in litigation for recovery of money.
Asian Resurfacing of Road Agency Private Limited v. Central Bureau of Investigation
Automatic vacation of stay of proceedings in a civil or criminal trial.
Delay in trials due to stay orders
In most civil and criminal cases, as soon as the court passes the order of framing of charges/issues, the accused invariably challenges the same in the High Court under the various provisions of the CPC, CrPC, or by filing a writ petition under Article 227 of the Indian Constitution, as the case may be, and demand a stay on the proceedings.
Pursuing the same, if a stay order is passed by the High Court, the proceedings in the trial court are halted until the same is lifted. However, many times the stay order remains in effect for years together or even if the same is lifted, no intimation is received by the trial court or the parties and hence, the proceedings are not resumed. The average pendency of a case from the date of grant of stay order is approximately 7.4 years causing a significant delay in the final disposal of cases by several years.
Directions issued in the case of Asian Resurfacing of Road Agency Private Limited v. Central Bureau of Investigation
In the above case, the Supreme Court set a landmark precedent by setting some directions in place to resolve the problem of unnecessary delay by restricting the validity of stay in civil as well as criminal trials to a maximum period of six months.
The directions issued down in the judgement are as follows:
- The stay order granted shall automatically expire after six months and can only be extended by a speaking order in exceptional circumstances where the court is convinced that the continuation of the said order surpasses the need of final disposal of the trial.
- All pending cases where a stay order against the proceedings of a trial is in operation, the same will come to an end on expiry of six months from the date of the said judgement unless extended by a speaking order.
- Henceforth, all the stay orders will end on the expiry of six months from the date of such order unless an extension is granted by a speaking order.
- The trial court where the stay order of a proceeding is produced, may fix a date within a period of six months of the stay order so that on expiry of the said order, proceedings can commence unless an order of extension of stay is produced.
Analysis of the directions issued
In light of the above judgement, all the orders granting a stay on proceedings shall only be valid for a period of six months, after which the trials may resume automatically without the need for filing any application to the High Court for lifting of the stay order.
Thus, the court has made it difficult for the defendants to obtain and more importantly, uphold the stay on proceedings by shifting the balance of convenience in favour of the plaintiffs. These directions will be successful in mitigating the unnecessary delay caused due to stay on proceedings and expedite the trials.
Dahiben v. Arvindbhai Kalyanji Bhanusali
Summary dismissal of a suit at threshold under Order 7 Rule 11 of the Civil Procedure Code.
Order 7 Rule 11 and Sham Suits
The judicial time is precious and ought to be employed in the most efficient manner possible. Even so, sham suits are still instituted on frivolous grounds with the objective of harassing the defendant. Sham litigations not only waste the time and resources of the courts but also cause unwarranted prejudice to parties arrayed as defendants in such litigations. The Civil Procedure Code, 1908 (“CPC”) under Order 7 Rule 11 (“O7 R11”) provides a special remedy for the same titled ‘Rejection of Plaint’. These provisions empower the court to dismiss a suit at the threshold without proceeding to record evidence and conduct trial if the court is convinced that the said suit is a sham.
The position of the Court in the case of Dahiben v. Arvindbhai Kalyanji Bhanusali, 2020
In the above case, the Supreme Court elaborated on how the interpretation of O7 R11 can be used to dismiss frivolous and inane suits summarily. Taking cognizance of the object of the said provision, the court observed that where no cause of action is disclosed in the plaint or if the suit is barred by limitation, the protraction of proceedings will not be permitted. The entire purpose of the provisions under O7 R11 is to ensure that meaningless litigation, that is bound to prove abortive, should not be permitted to occupy the time of the courts as well as the respondents.
Further, the court also stated that in order to dismiss a suit on the grounds enumerated in O7 R11, the court should not go into detailed facts provided in the written statement or application but restrict themselves to the contents of the plaint. Thus, on meaningful reading of the plaint if it is found that the plaint is manifestly vexatious and without any merit or a right to sue, the court, in pursuance to the powers under the said provision, should reject the same.
Analysis on the interpretation of the provisions
Thus, if a suit is barred by any law, or fails to disclose a valid cause of action, or if the reliefs prayed for therein are defective and un-remediable, with regards to the provisions of O7 R11, then the respondent can seek recourse of the court for summary dismissal of the suit.
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Rockwool International A/S v. Thermocare Rockwool (India) Pvt. Ltd.
Summary Judgement under Order 13-A of the Civil Procedure Code, 1908.
Summary Judgements
The Commercial Courts Act, 2015 was enacted by the Parliament for expedition of trial and speedy resolution of commercial disputes. The Act amended the CPC to include Order 13-A which provides a mechanism for ‘Summary Judgement’. In a summary judgement, the courts can decide a claim or counterclaim without recording oral evidence, ensuring expeditious disposal of commercial claims without the procedural delays of a normal trial.
Grounds and Procedure for a Summary Judgement as laid down in Rockwool International A/S v. Thermocare Rockwool (India) Pvt. Ltd.
In the above-mentioned case, the Delhi High court explained the scope of the provisions relating to summary judgement.
Procedure:
- Either party to a commercial suit can file an application to the court for a summary judgement.
- The application should be filed in the prescribed manner, at any stage of trial after the summons has been served to the defendant but before framing of the issues.
- The respondent may file a reply to such an application in the prescribed manner within 30 days.
- If the Court, on the application of either party, is convinced of the following, it can pass summary judgement:
- the plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of successfully defending the claim, as the case may be; and
- there is no other compelling reason why the claim should not be disposed of before recording of oral evidence
Analysis of the scope of the provisions
The provisions of summary judgement are very useful in those Commercial and Intellectual Property Rights disputes where the case is prima facie one-sided and the other party has no real prospect of succeeding. They ensure quick recovery of the claim amount and relief, thereby saving the time and money required for prolonged litigations.
Conclusion
The task of reforming procedural laws in India is exhaustive but continuous attempts have been made by the Indian Courts to mitigate the flaws in the laws to make the delivery of justice expeditious. Nonetheless, the existing procedural laws although not completely inept have certain shortcomings that need to be fixed. Till the time these shortcomings are taken care of, it is incumbent upon the legal fraternity, to adopt the most expeditious interpretations of these laws for speedy and time-bound resolution of disputes. After all, ‘justice delayed is justice denied’.
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